Citation Nr: 0214538
Decision Date: 10/17/02 Archive Date: 10/29/02
DOCKET NO. 97-25 902 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to service connection for arthritis of the
head.
2. Entitlement to service connection for arthritis of the
left shoulder.
3. Entitlement to service connection for arthritis of the
legs.
4. Entitlement to service connection for arthritis of the
right hip.
5. Entitlement to service connection for arthritis of the
right hand.
6. Entitlement to service connection for flat feet.
7. Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for
bilateral hearing loss.
8. Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
cervical spine disability.
9. Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
left hip disability.
10. Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
bladder disability.
11. Entitlement to a rating in excess of 10 percent for
residuals of a laceration of the extensor tendons of the left
right and little fingers.
12. Entitlement to a compensable evaluation for residuals of
a fracture of the alveolar arch with fractures of teeth 24,
25 and 26.
13. Entitlement to special monthly pension based on a need
for the regular aid and attendance of another person.
(The issues of entitlement to service connection for PTSD,
headaches, a disorder of the lower extremities and liver
disease will be the subjects of a later decision.)
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESSES AT HEARINGS ON APPEAL
Appellant, T.S., C.T.
ATTORNEY FOR THE BOARD
G. A. Wasik, Counsel
INTRODUCTION
The veteran served on active duty from April 1971 to April
1973.
This matter is before the Board of Veterans' Appeals (the
Board) on appeal from rating decisions by the Phoenix,
Arizona, Regional Office (RO) of the Department of Veterans
Affairs (VA).
In correspondence which was received at the Board in November
1996, the veteran claimed entitlement to service connection
for chronic bronchitis. This issue has been neither
procedurally prepared nor certified for appellate review and
is referred to the RO for initial consideration and
appropriate adjudicative action. Godfrey v. Brown, 7 Vet.
App. 398 (1995).
The Board is undertaking additional development on the issues
of service connection for PTSD, headaches, a disorder of the
lower extremities and liver disease, pursuant to authority
granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be
codified at 38 C.F.R. § 19.9(a)(2)). When it is completed,
the Board will provide notice of the development as required
by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan.
23, 2002) (to be codified at 38 C.F.R. § 20.903.) After
giving the notice and reviewing your response to the notice,
the Board will prepare a separate decision addressing these
issues.
FINDINGS OF FACT
1. There is no competent evidence of record demonstrating
that the veteran currently has arthritis of the head.
2. There is no competent evidence of record demonstrating
that the veteran currently has arthritis of the left
shoulder.
3. There is no competent evidence of record demonstrating
that the veteran currently has arthritis of the legs.
4. There is no competent evidence of record demonstrating
that the veteran currently has arthritis of the right hip
which was incurred in or aggravated by active duty.
5. There is no competent evidence of record demonstrating
that the veteran currently has arthritis of the right hand.
6. Flat feet were not present during active duty or for many
years after discharge from active duty.
7. The RO denied service connection for hearing loss in
December 1990; a notice of disagreement was not received to
initiate an appeal from that determination.
8. Evidence received since the December 1990 rating decision
does not bear directly and substantially upon the matter at
hand, is cumulative and redundant and is not so significant
that it must be considered in order to fully decide the
merits of the claim.
9. The RO denied service connection for a cervical spine
disorder in December 1990.
10. Evidence received since the December 1990 RO decision
does not bear directly and substantially upon the matter at
hand, is cumulative and redundant and is not so significant
that it must be considered in order to fully decide the
merits of the claim.
11. The RO denied service connection for a left hip disorder
in August 1980; a notice of disagreement was not received to
initiate an appeal from that determination.
12. Evidence received since the August 1980 rating decision
does not bear directly and substantially upon the matter at
hand, is cumulative and redundant and is not so significant
that it must be considered in order to fully decide the
merits of the claim.
13. The Board denied service connection for a bladder
disorder in May 1981.
14. Evidence received since the May 1981 Board decision does
not bear directly and substantially upon the matter at hand,
is cumulative and redundant and is not so significant that it
must be considered in order to fully decide the merits of the
claim.
15. The veteran failed to report for VA examinations of the
hands, teeth and for aid and attendance in November and
December 2000 without good cause being shown.
16. The veteran's service-connected disabilities are
lumbosacral strain, degenerative disk disease, and
degenerative joint disease of the lumbar spine (evaluated as
60 percent disabling); residuals of a laceration of the
extensor tendons of the left ring and little fingers
(evaluated as 10 percent disabling); residuals of a fracture
of the alveolar arch with fracture of teeth numbers 24,25 and
26 (non-compensable evaluation); and a scar on the lower left
lip (non-compensable evaluation).
17. The veteran's service-connected disabilities do not
render him so helpless as to be unable to care for himself or
protect himself from the dangers or hazards incident to his
daily environment.
18. The veteran is not permanently or substantially confined
to his house or immediate premises as a result of his
service-connected disabilities.
CONCLUSIONS OF LAW
1. Arthritis of the head was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp.
2002); 38 C.F.R. § 3.303 (2001).
2. Arthritis of the left shoulder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991
& Supp. 2002); 38 C.F.R. § 3.303 (2001).
3. Arthritis of the legs were not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp.
2002); 38 C.F.R. § 3.303 (2001).
4. Arthritis of the right hip was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991
& Supp. 2002); 38 C.F.R. § 3.303 (2001).
5. Arthritis of the right hand was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991
& Supp. 2002); 38 C.F.R. § 3.303 (2001).
6. Flat feet were not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 2002); 38
C.F.R. § 3.303 (2001).
7. The December 1990 rating decision which denied
entitlement to service connection for bilateral hearing loss
is final. 38 U.S.C.A. § 7105(c) (West 1991).
8. Evidence received since the December 1990 rating decision
denying service connection for bilateral hearing loss is not
new and material, and the claim for that benefit has not been
reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (2001).
9. The December 1990 rating decision which denied service
connection for a cervical spine disorder is final. 38
U.S.C.A. § 7105(c) (West 1991).
10. Evidence received since the December 1990 RO decision
denying service connection for a cervical spine disorder is
not new and material, and the claim for that benefit has not
been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (2001).
11. The August 1980 rating decision which denied entitlement
to service connection for a left hip disorder is final. 38
U.S.C.A. § 7105(c) (West 1991).
12. Evidence received since the August 1980 rating decision
denying service connection for a left hip disorder is not new
and material, and the claim for that benefit has not been
reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (2001).
13. The May 1981 Board decision which denied service
connection for a bladder disorder is final. 38 U.S.C.A. §
7104 (West 1991); 38 C.F.R. § 20.1100 (2001).
14. Evidence received since the May 1981 Board decision
denying service connection for a cervical spine disorder is
not new and material, and the claim for that benefit has not
been reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp.
2002); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105 (2001).
15. The claim of entitlement to an evaluation in excess of
10 percent for residuals of a laceration of the extensor
tendons of the left ring and little fingers is denied due to
failure to report, without good cause, for a VA compensation
examination. 38 C.F.R. § 3.655(b) (2001).
16. The claim of entitlement to a compensable evaluation for
residuals of a fracture of the alveolar arch with fractures
of teeth 24, 25 and 26, is denied due to failure to report,
without good cause, for a VA compensation examination. 38
C.F.R. § 3.655(b) (2001).
17. The criteria for establishing entitlement to special
monthly compensation based on being housebound or in need of
regular aid and attendance have not been met. 38 U.S.C.A. §§
1114, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.350,
3.352 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002).
This newly enacted legislation provides, among other things,
for notice and assistance to claimants under certain
circumstances. VA has issued final rules to amend
adjudication regulations to implement the provisions of VCAA.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
The intended effect of the new regulations is to establish
clear guidelines consistent with the intent of Congress
regarding the timing and the scope of assistance VA will
provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim. Where laws or regulations change
after a claim has been filed or reopened and before the
administrative or judicial process has been concluded, the
version most favorable to the appellant will apply unless
Congress provided otherwise or has permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991).
After reviewing the claims folder, the Board finds that there
has been substantial compliance with the assistance
provisions set forth in the new law and regulation. The
record in this case includes service medical records, private
and VA medical records, reports of VA examinations, Social
Security Administration records, transcripts of RO hearings
and correspondence from the veteran. Significantly, no
additional pertinent evidence has been identified by the
claimant as relevant to the issue on appeal. Under these
circumstances, no further action is necessary to assist the
claimant with the claim.
The veteran was scheduled for VA housebound, dental and hand
examinations in November and December 2000 but failed to
report. No reason was provided for his failure to appear for
examination. The veteran was also afforded an opportunity to
present testimony to a Member of the Board in June 2002 but
again failed to report for his scheduled hearing. No reason
was provided for his failure to appear for the hearing.
In a February 2002 letter from the RO and in a November 2002
supplemental statement of the case, the veteran was
effectively furnished notice of the types of evidence
necessary to substantiate his claims as well as the types of
evidence VA would assist him in obtaining. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Furthermore, the claimant has been notified of the applicable
laws and regulations which set forth the criteria for service
connection claims, attempts to reopen claims which were
previously denied and increased rating claims. The
discussions in the rating decision, statement of the case,
supplemental statement of the case and correspondence from
the RO have informed the claimant of the information and
evidence necessary to warrant entitlement to the benefits
sought. The Board therefore finds that the notice
requirements of the new law and regulation have been met.
The Board has reviewed the facts of this case in light of
VCAA and the new VCAA regulations. As discussed above, VA
has made all reasonable efforts to assist the claimant in the
development of the claims and has notified the claimant of
the information and evidence necessary to substantiate the
claims. Consequently, the case need not be referred to the
claimant or the claimant's representative for further
argument as the Board's consideration of the new law and new
regulations in the first instance does not prejudice the
claimant. See generally Sutton v. Brown, 9 Vet. App. 553
(1996); Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C.
Prec. Op. No. 16-92 (July 24, 1992).
Under the circumstances of this case, where there has been
substantial compliance with the new legislation and the new
implementing regulation, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided).
Service Connection Claims
Criteria
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time. 38 C.F.R. § 3.303(b). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may also be granted for any disease diagnosed
after discharge when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The United States Court of Appeals for Veterans Claims ("the
Court") has held that, in order to prevail on the issue of
service connection, there must be medical evidence of a (1)
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet.
App. 247, 253 (1999).
Where a veteran served continuously for 90 days or more
during a period of war and arthritis becomes manifest to a
degree of 10 percent or more within one year from the date of
termination of such service, such disease shall be presumed
to have been incurred in service, even though there is no
evidence of such disease during the period of service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R.
§§ 3.307, 3.309.
In addition, service connection may be granted for a disorder
which is proximately due to or the result of a service-
connected disability. 38 C.F.R. § 3.310(a). Secondary
service connection may also be established when there is
aggravation of a veteran's nonservice-connected condition
that is proximately due to or the result of a service-
connected condition. Allen v. Brown, 7 Vet. App. 439, 448
(1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). In
those circumstances, compensation is allowable for the degree
of disability (but only that degree) over and above the
degree of disability existing prior to the aggravation.
Allen, 7 Vet. App. at 448. See 38 C.F.R. § 3.322.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination,
the benefit of the doubt is afforded the claimant.
38 U.S.C.A. § 5107(b).
Entitlement to service connection for arthritis of the left
Shoulder
Service connection is not warranted for arthritis of the left
shoulder. There is no competent evidence of the presence of
the disorder during active duty. The service medical records
are silent as to the presence of the disorder. Physical
examination at the time of the veteran's discharge
examination was normal.
There is no competent evidence of record demonstrating the
presence of arthritis of the left shoulder to a compensable
degree within one year of discharge which would have allowed
for a grant of service connection on a presumptive basis.
There is no competent evidence of record demonstrating that
the veteran currently experiences arthritis of the left
shoulder. In January 1992, the veteran complained of chronic
pain in the left shoulder but no diagnosis was made. A
February 1992 X-ray examination of the left shoulder was
interpreted as being within normal limits. It was noted that
the veteran injured his left shoulder in November 1991. A
March 1995 X-ray examination of the left shoulder was
interpreted as being essentially normal.
A claim for service-connection for a disability must be
accompanied by evidence which establishes that the claimant
currently has the claimed disability. See Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v.
Derwinski, 3 .Vet. App. 223, 225 (1992) (absent proof of a
present disability there can be no valid claim).
The only evidence of record which demonstrates that the
veteran currently has arthritis of the left shoulder which
was incurred in or aggravated by active duty is the veteran's
own allegations and testimony. A lay person is not competent
to make a medical diagnosis or to relate a medical disorder
to a specific cause. See Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
Entitlement to service connection for arthritis of the right
hip
Service connection is not warranted for arthritis of the
right hip. There is no competent evidence of record
demonstrating that the veteran had the disorder during active
duty. The service medical records are silent and physical
examination at the time of the veteran's discharge was
normal.
There is no competent evidence of record demonstrating the
presence of arthritis of the right hip to a compensable
degree within one year of discharge which would have allowed
for a grant of service connection on a presumptive basis.
While there is competent evidence of the current presence of
arthritis of the right hip, this disorder was first noted
more than 20 years after the veteran's discharge from active
duty. A March 1995 X-ray examination of the right hip was
interpreted as revealing possible very minimal narrowing of
the articular space with nothing else remarkable seen. This
pathology, however, was not linked to active duty in any way.
As there is no competent evidence of the presence of the
disorder during active duty or for many years afterward and
as there is no competent evidence of record linking currently
existing arthritis of the right hip to active duty on any
basis, the claim must be denied.
Entitlement to service connection for arthritis of the right
hand
Service connection is not warranted for arthritis of the
right hand. There is no competent evidence of record
demonstrating that the disorder was present during active
duty. The service medical records are silent as to the
presence of arthritis of the right hand and clinical
evaluation of the upper extremities was normal at the time of
the service exit examination.
There is no competent evidence of record demonstrating the
presence of arthritis of the right hand to a compensable
degree within one year of discharge which would have allowed
for a grant of service connection on a presumptive basis.
There is no competent evidence of record demonstrating that
the veteran currently experiences arthritis of the right
hand. A March 1995 X-ray examination of the right hand was
interpreted as being essentially within normal limits. A
claim for service-connection for a disability must be
accompanied by evidence which establishes that the claimant
currently has the claimed disability. See Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v.
Derwinski, 3 .Vet. App. 223, 225 (1992) (absent proof of a
present disability there can be no valid claim).
The only evidence of record which demonstrates that the
veteran currently has arthritis of the right hand which was
incurred in or aggravated by active duty is the veteran's own
allegations and testimony. A lay person is not competent to
make a medical diagnosis or to relate a medical disorder to a
specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992).
Entitlement to service connection for arthritis of the head
Service connection is not warranted for arthritis of the
head. There is no competent evidence of record demonstrating
the presence of disorder during the veteran's period of
active duty service. The service medical records are silent
to the disorder.
There is no competent evidence of record demonstrating the
presence of arthritis of the head to a compensable degree
within one year of discharge which would have allowed for a
grant of service connection on a presumptive basis.
There is no competent evidence of record of the current
existence of arthritis of the head. The post-service medical
records are silent as to the presence of the disorder. A
March 1996 CT of the head was interpreted as being an
essentially normal study. In order to obtain service
connection, there must be both evidence of a disease or
injury that was incurred in or aggravated by service, and a
present disability which is attributable to such disease or
injury. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A
claim for service-connection for a disability must be
accompanied by evidence which establishes that the claimant
currently has the claimed disability. See Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v.
Derwinski, 3 .Vet. App. 223, 225 (1992) (absent proof of a
present disability there can be no valid claim).
The only evidence of record which indicates that the veteran
has arthritis of the head is the veteran's own allegations
and testimony. However, as noted above, the veteran is a lay
person and is not competent to make a medical diagnosis or to
relate a medical disorder to a specific cause. See Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992).
Entitlement to service connection for flat feet
Service connection is not warranted for flat feet. The
service medical records are silent as to the presence of any
foot disorder. The first objective evidence of the presence
of any foot disorder was in 1996, more than 20 years after
the veteran's discharge from active duty.
The post-service medical evidence does not indicate that the
veteran's current foot problems were incurred in or
aggravated by active duty.
A February 1996 VA clinical record indicates the veteran was
complaining that his left foot was larger than the right. He
reported the presence of diffuse bilateral pain in his feet
for many years. Pes planus was noted. The assessments were
leg length discrepancy, left greater than right and also
diffuse foot pain bilaterally with nothing being noted
clinically. A February 1996 X-ray of the left foot was
interpreted as revealing minimal spur formation involving the
tarsal first metatarsal joint as well as the first
metatarsophalangeal joint. A small posterior calcaneal spur
was also noted. X-ray examination of the right foot reveal
minimal spur formation at the tarsal first metatarsal joint
as well as the first metatarsophalangeal joint.
In March 1996, the veteran complained of diffuse pain
especially in the right great toe on the bottom. X-rays were
referenced as showing no gross abnormality. The assessment
was leg length discrepancy.
The veteran testified in February 1997 that his feet were
flat because of nerve problems in his back. He stated that
he had spurs and fallen arches. He indicated that he did not
have flat feet when he went into the service. He testified
that he was diagnosed with flat feet in 1990 or 1991.
A September 1998 VA clinical record reveals that the veteran
was being fitted for an orthotic device. It was noted that
the veteran had limb length discrepancy and flat feet
bilaterally.
While there is competent medical evidence of the presence of
flat feet, the disorder has not been linked back to active
duty on any basis. The only evidence of record which links
currently existing flat feet to active duty in any way is the
veteran's own allegations and testimony. However, as noted
above, the veteran is a lay person and is not competent to
make a medical diagnosis or to relate a medical disorder to a
specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992).
As there is no competent evidence of the presence of flat
feet during active duty or for many years after discharge and
as the currently diagnosed flat feet have not been linked by
competent evidence to active duty in any way, service
connection for flat feet is not warranted.
The Board notes the veteran has not been afforded VA
examinations to determine the etiology of the claimed
arthritis of the head, arthritis of the left shoulder,
arthritis of the legs, arthritis of the right hip, arthritis
of the right hand, and his flat feet. However, due to the
lack of in-service findings of the disorders and the lack of
objective evidence of the disorders (if any) for many years
after discharge, any opinions obtained would be purely
speculative. This is especially so as the Board takes note
of the many references by health care professionals to the
fact that the veteran was a very poor historian. An opinion
based on such poor history is of little probative value and
there are no contemporaneous objective medical records to
otherwise base an opinion on.
New and Material Claims
Criteria
The veteran's claim of entitlement to service connection for
a cervical spine disability was denied by the Board in May
1981. His claim of entitlement to service connection for
bilateral hearing loss was last denied by the RO in December
1990 and he was provided notice of the decision the same
month. This decision became final in December 1991. His
claim of entitlement to service connection for a left hip
disability was last denied by the RO in August 1980 and he
was provided notice of the decision in September 1980. This
decision became final in September 1981. His claim of
entitlement to service connection for a cervical spine
disability was last denied by the Board in May 1981. The
veteran was provided notice of these decisions and of his
applicable procedural and appellate rights but did not appeal
the denials of service connection and the decisions became
final. These claims for service connection cannot thereafter
be reopened or allowed, except as otherwise provided. 38
U.S.C.A. § 7105; 38 C.F.R. § 20.1103.
If new and material evidence is presented or secured with
respect to a claim that has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2002);
Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
New and material evidence is defined by regulation. See 38
C.F.R. § 3.156. The Board notes here that the provisions of
38 C.F.R. § 3.156(a) were recently amended. See 66 Fed. Reg.
45620-45632 (August 29, 2001). However, the amended version
is only applicable to claims filed on or after August 29,
2001. The change in the regulation therefore does not impact
the present case.
New and material evidence means evidence not previously
submitted to agency decision makers, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a).
For the purpose of determining whether a case should be
reopened, the credibility of any factual statements added to
the record is to be presumed. Justus v. Principi, 3 Vet.
App. 510, 513 (1992).
Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for
bilateral hearing loss.
Factual Background
The veteran was treated numerous times for ear infections
while on active duty.
At the time of the veteran's entrance audiological evaluation
in March 1971, pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
10
Not
reported
10
LEFT
25
40
15
Not
reported
10
On in-service audiological evaluation in May 1971, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
15
Not
reported
20
LEFT
15
15
20
Not
reported
15
A second in-service audiological evaluation was conducted in
May 1971, and the pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
60
45
55
Not
reported
75
LEFT
90
80
90
Not
reported
Not
reported
On in-service audiological evaluation in June 1972, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
45
35
20
Not
reported
35
LEFT
25
20
15
Not
reported
20
On in-service audiological evaluation in September 1972, pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
Not
reported
10
LEFT
15
5
5
Not
reported
15
At the time of the separation examination in October 1972,
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
Not
reported
0
LEFT
0
0
0
Not
reported
0
On VA audiological evaluation in August 1973, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
10
15
20
LEFT
10
5
10
10
15
Speech audiometry revealed speech recognition ability of 98
percent in the right ear and of 100 percent in the left ear.
It was noted that the veteran complained of repeated ear
infections and decreased hearing during the infections but no
hearing loss otherwise. The pertinent diagnosis was
bilateral sensorineural deafness.
The RO denied service connection for bilateral sensorineural
deafness in December 1973. The RO determined that the
veteran had pre-existing hearing loss which was not
aggravated by active duty service. It also noted that the
current hearing acuity was not worse than it was at the time
of the veteran's entrance into active duty. The veteran was
informed of the decision and of his procedural and appellate
rights the same month.
On audiological evaluation in March 1989, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
Not
reported
5
0
15
30
LEFT
Not
reported
0
10
0
15
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and of 94 percent in the left ear.
It was noted that the veteran had normal hearing bilaterally.
In December 1990 the RO determined that the veteran had not
submitted new and material evidence to reopen the claim of
entitlement to service connection for bilateral hearing loss.
He was informed of this decision the same month.
On audiological evaluation in April 1996, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
5
20
35
LEFT
5
10
10
10
20
Speech audiometry revealed speech recognition ability of 100
percent in the right ear and of 100 percent in the left ear.
It was noted that the veteran's hearing was unchanged when
compared with a 1989 evaluation.
Analysis
The Board finds that new and material evidence has not been
submitted to reopen the claim of entitlement to service
connection for bilateral hearing loss. The pertinent
evidence submitted subsequent to the December 1990 RO
decision consists of a VA audiological examination. The
report of the April 1996 VA audiological examination did not
indicate that the veteran's pre-existing hearing loss was
aggravated by active duty nor did it link current hearing
loss to active duty in any way. In fact, the April 1996 VA
examination did not indicate that the veteran had hearing
loss for VA purposes at that time. The Court has held that
additional evidence, which consists of records of
post-service treatment that do not indicate in any way that a
condition is service-connected, is not new and material. Cox
v. Brown, 5 Vet. App. 95, 99 (1993).
The Board finds the evidence submitted subsequent to the
December 1990 RO decision which denied service connection for
bilateral hearing loss does not bear directly and
substantially upon the specific matter under consideration,
is cumulative, and by itself or in connection with the
evidence previously assembled is not so significant that it
must be considered in order to fairly decide the merits of
the claim.
Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
cervical spine disability.
Factual Background
The veteran was treated for low back problems during active
duty but the service medical records were silent as to the
presence of any cervical spine disability. No pertinent
abnormalities were noted on the report of the separation
examination which was conducted in October 1972.
In March 1975, it was noted that the veteran injured his neck
and back in February 1975. He complained in part of cervical
spine pain. The pertinent diagnosis was cervical strain.
A September 1977 X-ray of the cervical spine was interpreted
as being normal.
A March 1978 letter from a private physician indicates that
the range of motion of the veteran's neck was satisfactory.
It was noted at that time that the veteran injured his back
in June 1977 while lifting a trash can. A March 1978 X-ray
of the cervical spine was interpreted as revealing evidence
of minimal torticollis and no other abnormality.
The veteran was treated intermittently for neck pain by VA
and private physicians in 1977, 1978 and 1979.
A February 1979 report of VA examination included a pertinent
diagnosis of residuals of neck injury. The veteran reported
that he experienced a whiplash injury during active duty. A
February 1979 X-ray of the cervical spine was interpreted as
being normal.
By rating decision dated in April 1979, the RO denied service
connection for a cervical spine injury. It was noted that
the service records were negative for any evidence of a
chronic cervical spine injury. The RO denied the claim again
in July 1979.
By decision dated in May 1981, the Board denied service
connection for residuals of an injury to the cervical spine.
The Board found that the evidence of record did not show that
the veteran had a cervical spine injury during active duty
nor had any cervical spine disorder been shown to be
reasonably related to service.
VA treatment records dated from 1973 to 1981 reflect
intermittent complaints of neck pain. A cervical spasm was
noted in September 1979. A January 1980 record notes the
presence of several problems including cervical spine pain
and indicated that they appear to be chronic problems. The
assessment was low back syndrome and questionable psychogenic
rheumatism. In December 1981, the veteran complained of
ulnar nerve neuropathy and pain and muscle spasm in the low
cervical and upper dorsal spine area. The assessment was
ulnar nerve neuralgia.
On VA examination in November 1984, the veteran complained of
pain in his neck. An X-ray of the cervical spine was
interpreted as being normal.
At a local RO hearing in April 1985, the veteran testified as
to low back symptomatology he experienced. He did not report
any problems with his cervical spine.
A July 1987 Medical Certificate indicates that the veteran
had marked spasm of the trapezium and post cervical muscles.
The diagnosis was somatization.
In November 1987, the veteran complained of increased pain in
his neck. The assessment was chronic back pain.
In April 1988, the veteran complained of neck pain. The
impression was low back pain and neck pain and also question
patient's motives because of questionable weakness of
extremities.
A February 1989 VA examination resulted in a pertinent
diagnosis of cervical spine strain. An X-ray of the cervical
spine was interpreted as being negative.
On VA examination in October 1990, a pertinent diagnosis of
degenerative joint disease of the cervical spine with severe
limitation of range of movements due to what appears to be
voluntary rigidity and stiffness was made. An October 1990
X-ray examination of the cervical spine was interpreted as
being normal.
In December 1990, the RO determined that the veteran had not
submitted new and material evidence to reopen the claim of
entitlement to service connection for a neck disability.
In March 1991, the veteran complained of neck pain.
A March 1993 X-ray examination of the cervical spine was
compared to an October 1990 X-ray. There was no change. No
pathology was present. The impression was that the
examination did not show any disease of the cervical spine.
A March 1993 clinical record demonstrates that the veteran
was seeking treatment for cervical spine pain. He reported
left sided neck pain. Bilateral trapezium spasm was noted.
The assessment was low back pain.
An August 1993 X-ray examination of the cervical spine was
interpreted as revealing early degenerative changes involving
C4 and C5.
A March 1995 X-ray examination of the cervical spine revealed
minimal lipping along the anterior superior margin of C5 with
nothing else remarkable noted about the cervical spine.
The veteran testified at a local RO hearing in May 1995 that
he had pain in his neck which radiated into his arms.
A January 1996 VA clinical record includes the notation that
the veteran had neck pain and mild degenerative changes which
might be contributing to his complaints of pain.
On VA examination in March 1996, it was noted that the
veteran had decreased range of motion in the cervical spine
which was suggestive of some mechanical neck pain. It was
also noted that motor and sensory examination of the veteran
was unreliable and an Electromyograph (EMG) was ordered to
seek objective evidence, in part, for cervical radiculopathy,
on the left. The EMG examination was essentially normal.
A May 1996 clinical record includes the notation that the
veteran had a history of chronic neck, back and leg pain
secondary to a motor vehicle accident in the military.
A June 1996 VA clinical record includes the notation that the
veteran had chronic neck pain secondary to degenerative joint
disease of the lumbosacral spine.
A July 1996 VA clinical record include the notation that the
veteran had a history of chronic leg, neck, and spine pain
secondary to a motor vehicle accident which occurred in the
military. The assessment was chronic pain syndrome.
The veteran testified at a local RO hearing in February 1997
that he experienced pain in his neck which began in 1972
after a motor vehicle accident. He reported that he was
hospitalized for whiplash after the accident. He indicated
that he had had the pain since the time of the accident.
A June 1998 VA clinical record reveals that the veteran was
complaining of pain all over his body but worse in the neck
and shoulders. The diagnostic impression was probable
enteroviruses.
In September 1998, the veteran complained of pain all over
but worse in the neck and back. The impression was mild
spinal stenosis and chronic pain syndrome.
Analysis
The Board finds that new and material evidence has not been
submitted to reopen the claim of entitlement to service
connection for a cervical spine disorder. The majority of
the clinical evidence submitted subsequent to the December
1990 decision demonstrates intermittent complaints of and
treatment for neck pain but do not indicate in any way that
the disorder was related to active duty. The Court has held
that additional evidence, which consists of records of
post-service treatment that do not indicate in any way that a
condition is service-connected, is not new and material. Cox
v. Brown, 5 Vet. App. 95, 99 (1993).
Several of the clinical records submitted subsequent to the
December 1990 decision indicate that the veteran had a
history of chronic pain, including neck pain, which was
secondary to an in-service motor vehicle accident. The Board
finds this evidence is not new and material. The Court has
held that evidence which is simply information recorded by a
medical examiner, unenhanced by any additional medical
comment by that examiner, does not constitute competent
medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409
(1995). In the current case, the references to the in-
service motor vehicle accident are recitations of the
veteran's own self-reported history and do not constitute an
actual opinion as to the etiology of the cervical spine
disorder by the health care professionals who made the
notations. The fact that the veteran alleged that he had
neck pain which he attributed to an in-service motor vehicle
accident was already of record at the time of the December
1990 decision.
The veteran's testimony at the RO hearings is not new and
material. As noted above, the fact that the veteran alleged
that he had neck pain which he attributed to an in-service
accident was already of record at the time of the final prior
Board decision.
The Board finds the evidence submitted subsequent to the
December 1990 RO decision which denied service connection for
a cervical spine disorder does not bear directly and
substantially upon the specific matter under consideration,
is cumulative, and by itself or in connection with the
evidence previously assembled is not so significant that it
must be considered in order to fairly decide the merits of
the claim.
Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
left hip disability.
Factual Background
A May 1971 X-ray examination of the left hip was interpreted
as being normal.
In July 1971, the veteran sought treatment on two different
occasions with complaints of pain in the left hip. An
assessment of probable chronic muscle strain was made. In
August 1972, he again complained of pain in the left hip
which was present on flexion. The impression was pulled
groin muscle.
An August 1972 X-ray examination of the left hip was
interpreted as being negative.
In October 1972, it was noted that examination of the
veteran's hips was normal at that time. No pathology was
seen.
No pertinent abnormalities were noted on the report of the
separation examination which was conducted in October 1972.
In December 1972, the veteran again sought treatment for
musculoskeletal pain in his left hip. It was noted that no
pathology was seen.
On VA examination in August 1973, the veteran reported that
he began to experience pain in his left hip after twisting
his back during basic training. Physical examination
revealed some tenderness in the left hip region but the range
of motion of the left hip joint was normal. An X-ray of the
left hip revealed no bone or joint abnormality. A left hip
disability was not diagnosed.
The RO denied service connection for a left hip condition in
August 1980. It was noted that the service medical records
were negative for any left hip problems and there was no
post-service evidence of record demonstrating the continuity
or existence of any left hip problems. The veteran was
informed of the decision and of his procedural and appellate
rights in September 1980.
A December 1979 VA clinical record which was received
subsequent to the August 1980 RO decision indicates the
veteran was complaining of severe left hip pain.
On VA examination in February 1989, the veteran complained of
left hip pain. A diagnosis of left hip strain was made. An
X-ray of the left hip was interpreted as being negative.
The veteran testified at a local RO hearing in February 1997
that he injured his left hip while in the army when he was
hit in the back. He alleged that his hip would lock up on
walking. The veteran's representative alleged that the hip
disorder was secondary to a service-connected back injury.
Analysis
The Board finds that new and material evidence has not been
submitted to reopen the claim of entitlement to service
connection for a left hip disorder. The clinical evidence
submitted subsequent to the August 1980 RO decision consists
of records reflecting complaints of left hip pain. This
evidence does not indicate in any way that the veteran has a
left hip disorder which was incurred in or aggravated by
active duty. The Court has held that additional evidence,
which consists of records of post-service treatment that do
not indicate in any way that a condition is service-
connected, is not new and material. Cox v. Brown, 5 Vet.
App. 95, 99 (1993).
The veteran's testimony at the February 1997 RO hearing is
new but not material. The fact that the veteran alleged that
he injured his left hip during active duty was already of
record at the time of the August 1980 RO hearing. The
veteran's representative's assertion that the left hip
disorder was secondary to the service-connected back
disability is not new and material. Reliance upon a new
etiological theory is insufficient to transform a claim which
has been previously denied into a separate and distinct, or
new, claim. See Ashford v. Brown, 10 Vet. App. 120 (1999).
The Board finds the evidence submitted subsequent to the
August 1980 RO decision which denied service connection for a
left hip disorder does not bear directly and substantially
upon the specific matter under consideration, is cumulative,
and by itself or in connection with the evidence previously
assembled is not so significant that it must be considered in
order to fairly decide the merits of the claim.
Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
bladder disability.
Factual Background
The service medical records reveal that in April 1972, the
veteran complained of discomfort in the left inguinal area
and left testicle. He also reported post mictural dysuria.
The impression was non-specific urethritis.
No pertinent abnormalities were noted on the report of the
separation examination which was conducted in October 1972.
On VA examinations in August 1973 and February 1979, physical
examination of the genito-urinary system was reported as
normal.
By rating decision dated in April 1979, the RO denied service
connection for a bladder condition, noting that the service
medical records were negative for evidence of a bladder
condition. The claim was denied by the RO again in July
1979.
In February 1981, the veteran complained of urinary frequency
and dribbling accompanied by pain in the bladder area. No
diagnosis was made.
By decision dated in May 1981, the Board denied service
connection for residuals of a bladder infection. The Board
found that the evidence of record did not show that the
veteran had a bladder infection during active duty nor had
any bladder infection been shown to be reasonably related to
service.
A February 1977 VA clinical record which was received
subsequent to the May 1981 Board decision indicates the
veteran was complaining of lumbosacral back pain which had
been present for two or three months and also left groin
pain. The assessment at that time was acute proctitis.
In August 1998, the veteran complained of bladder pain. He
reported that it was hard for him to urinate and that he
would occasionally dribble. A second VA clinical record
references the above bladder symptomatology and includes a
diagnostic impression of benign prostatic hypertrophy.
Analysis
The Board finds that new and material evidence has not been
submitted to reopen the claim of entitlement to service
connection for a bladder infection. The evidence submitted
subsequent to the May 1981 Board decision does not indicate
that the veteran had a bladder infection during active duty
or that he currently has a bladder infection which was linked
to active duty.
The two pertinent clinical records which indicate the
presence of bladder symptomatology do not, in any way,
indicate that the veteran had a bladder infection during
active duty or that he currently has a bladder infection
which is linked to active duty. Such evidence is not new and
material. Cox v. Brown, 5 Vet. App. 95, 99 (1993).
General Criteria for Evaluation of Increased Ratings Claims
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
When evaluating disabilities of the musculoskeletal system,
38 C.F.R. § 4.40 allows for consideration of functional loss
due to pain and weakness causing additional disability beyond
that reflected on range of motion measurements. DeLuca v.
Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45
provides that consideration also be given to weakened
movement, excess fatigability and incoordination.
When entitlement or continued entitlement to a benefit cannot
be established or confirmed without a current VA examination
or reexamination and a claimant, without good cause, fails to
report for such examination, or reexamination, action shall
be taken in accordance with paragraph (b) or (c) of this
section as appropriate. Examples of good cause include, but
are not limited to, the illness or hospitalization of the
claimant, death of an immediate family member, etc. For
purposes of this section, the terms examination and
reexamination include periods of hospital observation when
required by VA. 38 C.F.R. § 3.655(a). When a claimant fails
to report for an examination scheduled in conjunction with an
original compensation claim, the claim shall be rated based
on the evidence of record. When the examination was
scheduled in conjunction with any other original claim, a
reopened claim for a benefit which was previously disallowed,
or a claim for increase, the claim shall be denied. 38
C.F.R. § 3.655(b).
Entitlement to a rating in excess of 10 percent for residuals
of a laceration of the extensor tendons of the left ring and
little fingers.
The service medical records reveal that the veteran was
involved in a fight in September 1971 which resulted in a
laceration of the dorsum of the left hand dividing the common
extensor tendons of the second, third, fourth and fifth
fingers just distal to the volar carpal ligament. On the day
of the injury, the tendons were repaired. The extensor carpi
radialis longus was severed in the attack but not repaired.
The extensor carpi radialis brevis was intact. In December
1973, the RO granted service connection for residuals of a
laceration of the extensor tendons of the third and fourth
fingers of the left hand.
The veteran's claim of entitlement to an increased rating was
submitted in February 1994.
The evidence of record indicates that the veteran has
intermittently complained of pain, numbness, weakness and
loss of use in his left hand. Some VA examinations of record
indicate, however, that the veteran's subjective complaints
outweighed the physical findings.
On VA examination in August 1994, the veteran complained of
poor left hand manipulative ability. He reported that he was
unable to do much fingering or handling with his left hand.
Physical examination revealed that the veteran was only able
to extend the third and fourth fingers at the metacarpal
phalangeal joints to 170 degrees, lacking 10 degrees of full
extension. The second and fifth fingers only lacked 5
degrees of full extension. There was weakness of the
extensor muscles of the four lateral fingers of the left
hand, strength being 3/5. Passively, a complete fist could
be made and actively, the veteran could only make 50 percent
of a fist, complaining of pain. There was a well healed
surgical scar on the dorsum of the left wrist.
On VA examination in September 1994, the veteran complained
of chronic pain, weakness, and limitation of motion of the
hand. It was noted that the veteran's left hand was his
minor hand. Physical examination revealed an L shaped scar
over the proximal portion of the dorsum of the left hand.
Passively, there was a normal range of motion of the fingers
in the left hand. On active motion, there was a loss of 20
degrees of dorsiflexion of the third and fourth metacarpal
phalangeal joints of the left hand. On volar flexion, the
veteran was unable to approximate the tips of the fingers to
the transverse crease by approximately 1/4 inch. This appeared
to be secondary to perceived pain.
The veteran testified in May 1995 that he had limited
movement in his left hand. He reported that he was right
handed. He indicated that he had no strength in the left
hand.
He testified in February 1997 that he was unable to write
with his left hand. He also experienced numbness and pain.
He alleged that he lost the use of the entire left hand. He
reported that he was unable to dress himself with his left
hand.
The residuals of a laceration of the extensor tendons of the
left ring and little fingers is currently evaluated as 10
percent disabling under Diagnostic Code 5309, which addresses
injury to Muscle Group IX. See 38 C.F.R. § 4.73, Diagnostic
Codes 5307 to 5309. This provision applies to the intrinsic
muscles that supplement the function of the forearm muscles
in delicate manipulative movements. The intrinsic muscles
include the thenar eminence; short flexor, opponens, abductor
and adductor of thumb; hypothenar eminence; short flexor,
opponens and abductor of little finger; 4 lumbricales; 4
dorsal and 3 palmar interossei. A note to the criteria
states that the hand is so compact a structure that isolated
muscle injuries are rare, being nearly always complicated
with injuries of bones, joints, tendons, etc. Rate on
limitation of motion, minimum 10 percent.
Diagnostic Code 5223 provides the criteria for evaluation of
disability due to favorable ankylosis of multiple fingers.
When there is favorable ankylosis of the ring and little
fingers of the major or minor hand, a 10 percent evaluation
is warranted. Note 3 to this Diagnostic Code provides that
with only one joint of a digit ankylosed or limited in its
motion, the determination will be made on the basis of
whether motion is possible to within 2 inches (5.1
centimeters) of the median transverse fold of the palm; when
so possible, the rating will be for favorable ankylosis,
otherwise unfavorable ankylosis.
Diagnostic Code 5219 provides the criteria for evaluation of
disability due to unfavorable ankylosis of multiple fingers.
Unfavorable ankylosis of the ring and little fingers of the
major or minor hand, warrants a 20 percent evaluation.
The evidence of record is insufficient to grant an increased
rating. There is no objective evidence demonstrating that
the left hand disability was manifested by unfavorable
ankylosis of the ring and little fingers which is required in
order to warrant a 20 percent evaluation.
The Board notes that the veteran failed to report for VA
examinations scheduled in November and December 2000. The
veteran did not provide any indication why he failed to
report. Such examinations were specifically scheduled in
order to evaluate the residuals of the veteran's left hand
disability. As this is an increased ratings claim and the
veteran failed to report for a required examination without
good cause being shown, the claim must be denied. 38 C.F.R.
§ 3.655(b).
Entitlement to an initial compensable evaluation for
residuals of a fracture of the alveolar arch with fractures
of teeth 24, 25 and 26.
The service medical records reveal that the veteran was
involved in a motor vehicle accident in November 1972.
Residuals of the accident were reported as an alveolar arch
fracture involving teeth number 24 and 25, a class II
fracture of tooth number 26 involving the pulp and a through
and through laceration of the lower left lip. There was no
mention of nerve or artery involvement for any of the
residuals.
The post-service evidence of record demonstrates occasional
complaints of and treatment for dental problems including
tooth extractions. The veteran's current claim for an
increased rating was received in November 1994.
A November 1990 VA clinical record includes the notation that
the veteran had lost a great deal of bone in his jaw in the
last eleven years.
A June 1994 clinical record includes the notation that the
veteran recently had wisdom teeth extracted and was
experiencing some pain in the area of the extraction.
The veteran's representative alleged in November 1996 that
the veteran's jaw and teeth disorder had resulted in the loss
of several teeth on one side with ongoing loosening and also
decreased jaw motion.
The veteran testified in February 1997 that he had lost
feeling in his jaws. He reported that he had lost four teeth
since 1978.
A November 1997 clinical record indicates that the veteran's
mandible was partially edentulous but he had a serviceable
prosthesis.
The veteran's dental disability is currently evaluated as
non-compensably disabling under Diagnostic Code 9904 based on
malunion of the mandible. Malunion of the mandible is
evaluated on the basis of displacement, dependent upon the
resulting degree of impairment of motion and the relative
loss of masticatory function. A zero percent rating is
warranted for slight displacement. A 10 percent rating
requires moderate displacement. A 20 percent rating requires
severe displacement. 38 C.F.R. § 4.150, Code 9904.
Limitation of motion of the temporomandibular articulation is
rated as follows: A 10 percent rating requires limitation of
the range of lateral excursion from 0 to 4 millimeters or
limitation of the range of inter-incisal motion from 31 to
40 millimeters. A 20 percent rating is warranted for
limitation of the range of inter-incisal motion from 21 to 30
millimeters. A 30 percent rating is warranted for limitation
of the range of inter-incisal motion from 11 to 20
millimeters. A 40 percent rating is warranted for limitation
of the range of inter-incisal motion from 0 to 10
millimeters. 38 C.F.R. § 4.150, Code 9905.
Another potentially applicable Diagnostic Code is 9913. Loss
of teeth due to the loss of substance of the body of the
maxilla or the mandible without loss of continuity, but where
the lost masticatory surface cannot be restored by a suitable
prosthesis, warrants a 10 percent rating when all upper and
lower teeth on one side are missing, all lower anterior teeth
are missing, or all upper anterior teeth are missing. Where
all lower teeth are missing, a 30 percent rating is
warranted. However, where lost masticatory surface can be
restored by suitable prosthesis, a zero percent rating is
warranted. 38 C.F.R. § 4.150, Code 9913 (2001).
The evidence of record is insufficient to grant an increased
rating. There is no objective evidence demonstrating that
the dental disability was manifested by moderate or severe
displacement of the mandible nor is there objective evidence
demonstrating that the limitation of motion of the jaw was of
sufficient severity to warrant a compensable evaluation.
The veteran has alleged that he has lost teeth as a result of
his service-connected disability. There is competent
evidence of record demonstrating that he had teeth removed.
However, there is no competent evidence of record
demonstrating that the teeth were lost as a result of his
service-connected disability. Additionally, even if it were
conceded that the veteran lost teeth as a result of the
disability, he has been fitted with a mandibular prosthesis.
Under Diagnostic Code 9913, where the lost masticatory
surface is restored with a suitable prosthesis, a zero
percent rating is warranted.
The Board notes that the veteran failed to report for VA
examinations scheduled in November and December 2000. The
veteran did not provide any indication why he failed to
report. Such examinations were specifically scheduled in
order to evaluate the veteran's dental disability. As this
is an increased ratings claim and the veteran failed to
report for a required examination without good cause being
shown, the claim must be denied. 38 C.F.R. § 3.655(b).
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards. 38
C.F.R. § 3.321(b)(1). In this regard, the Board finds that
there has been no showing by the veteran that his service
connected disabilities has resulted in marked interference
with employment or necessitated frequent periods of
hospitalization. Under these circumstances, the Board finds
that the veteran has not demonstrated marked interference
with employment so as to render impractical the application
of the regular rating schedule standards. See Bagwell v.
Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App.
218, 227 (1995).
Finally, in making this determination, the Board has
considered the provisions of 38 U.S.C.A. § 5107(b), but there
is not such a state of approximate balance of the positive
evidence with the negative evidence to otherwise warrant
favorable decisions.
Entitlement to special monthly pension based on a need for
the regular aid and attendance of another person.
Special monthly compensation provisions contemplate
situations where a higher rate of compensation (as opposed to
a higher schedular rating) may be awarded even if a
disability has already been assigned a 100 percent schedular
rating. 38 U.S.C.A. § 1114; 38 C.F.R. §§ 3.350, 3.352.
Increased compensation is payable to a veteran in need of
regular aid and attendance. See 38 U.S.C.A. § 1114(a); 38
C.F.R. § 3.350(b). The following factors will be accorded
consideration in determining that need: inability of the
veteran to dress or undress himself, or to keep himself
ordinarily clean and presentable; frequent need of adjustment
of any special prosthetic or orthopedic appliances which by
reason of the particular disability cannot be done without
aid (this will not include the adjustment of appliances which
normal persons would be unable to adjust without aid, such as
supports, belts, lacing at the back, etc.); inability of
veteran to feed himself through loss of coordination of upper
extremities or through extreme weakness; inability to attend
to the wants of nature; or incapacity, physical or mental,
which requires care or assistance on a regular basis to
protect the veteran from hazards or dangers incident to his
daily environment.
"Bedridden" will be a proper basis for the determination.
For the purpose of this paragraph "bedridden" will be that
condition which, through its essential character, actually
requires that the veteran remain in bed. The fact that the
veteran has voluntarily taken to bed or that a physician has
prescribed rest in bed for the greater or lesser part of the
day to promote convalescence or cure will not suffice. It is
not required that all of the disabling conditions enumerated
in this paragraph be found to exist before a favorable rating
may be made. The particular personal functions which the
veteran is unable to perform should be considered in
connection with his condition as a whole. It is only
necessary that the evidence establish that the veteran is so
helpless as to need regular aid and attendance, not that
there be a constant need. Determinations that the veteran is
so helpless as to be in need of regular aid and attendance
will not be based solely upon an opinion that the veteran's
condition is such as would require him to be in bed. They
must be based on the actual requirement of personal
assistance from others. See 38 C.F.R. § 3.352.
Special monthly compensation may also be payable pursuant to
38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i), where the
veteran has a single service-connected disability rated as
100 percent disabling, and (1) has additional service-
connected disability or disabilities ratable at 60 percent,
separate and distinct from the 100 percent service-connected
disability and involving different anatomical segments or
bodily systems, or (2) is permanently housebound by reason of
the service-connected disability or disabilities. This
requirement is met when the veteran is substantially confined
as a direct result of service-connected disabilities to his
dwelling and the immediate premises or, if institutionalized,
to the ward or clinical areas, and it is reasonably certain
that the disability or disabilities will continue throughout
his lifetime.
The veteran and his representative essentially assert that,
owing to impairment associated with his service-connected
back disability, he is confined to his immediate premises and
that he is unable to care for himself. He therefore contends
that he qualifies for special monthly compensation based on
being housebound or because he is in need of regular aid and
attendance.
The veteran is service-connected for lumbosacral strain,
degenerative disk disease, and degenerative joint disease of
the lumbar spine (evaluated as 60 percent disabling), for
residuals of a laceration of the extensor tendons of the left
ring and little fingers (evaluated as 10 percent disabling)
for residuals of a fracture of the alveolar arch with
fracture of teeth numbers 24,25 and 26 (non-compensable
evaluation) and for a scar on the lower left lip (non-
compensable evaluation). The veteran has no other service-
connected disabilities.
The Board finds that the preponderance of the evidence is
against a grant of special monthly compensation. The
evidence of record does not support a finding that the
veteran meets the criteria for aid and attendance as his
service-connected disabilities do not render him permanently
housebound and nor do they render him sufficiently helpless
as to require the regular aid and attendance of another
person.
A June 1990 vocational rehabilitation panel summary indicated
that vocational rehabilitation was not feasible due to the
nature and severity of the nonservice-connected
schizophrenia. It was specifically noted that the veteran
did not require independent living services.
On VA examination for housebound status in July 1995, it was
noted that the veteran's back was moderately restricted in
motion. He was able to get dressed by himself and was also
able to shower and shave by himself. The examiner noted that
the veteran was able to walk by himself without the aid of
another person. The veteran walked with a cane. The
diagnosis was degenerative arthritis of the entire spine and
schizophrenia. It was the examiner's opinion that the
veteran did not require daily skilled service.
On VA examination for housebound status in August 1996, it
was noted that the veteran was able to feed himself and
attend to his personal grooming needs. His upper extremities
were limited in movement. It was noted that the left leg was
partially paralyzed with pain in both legs. Motion was
limited to 80 percent. He was able to walk 1 block or about
100 feet. The examiner reported that the pathology which
affected the veteran's ability to perform self-care or to
ambulate was schizophrenia and PTSD. It was noted that the
veteran had problems with the amount of medication he took
and needed someone to give him the medication on a regular
basis. The diagnoses were paranoid type schizophrenia, PTSD,
arthritis and left sided paralysis. It was the examiner's
opinion that the veteran required the daily personal care
services of a skilled provider without which the veteran
would require hospital, nursing home or other institutional
care.
The veteran testified in February 1997 that he required aid
and attendance because he was unable to cook due to his back
and neck.
On VA examination for housebound status in March 1998, it was
noted that the veteran had left hand limitations status post
injury. He was able to walk with a cane and a right leg
tremor was present. He had degenerative joint disease of the
cervical and lumbar spine with loss of motion. It was noted
that the veteran's brother helped him dress and with his
food. The veteran was able to walk one block without
assistance. The diagnoses were degenerative disk disease and
degenerative joint disease of the spine. The examiner opined
that daily skilled services were not required.
A November 1999 report by a social worker indicated that the
veteran was living by himself at that time.
A May 2000 letter from a private physician indicates that the
veteran was unable to care for himself as a result of his
psychiatric disorder.
The above reference evidence demonstrates that the veteran
does not require the aid and attendance of another individual
or was housebound as a result of his service-connected
disabilities. Two of the aid and attendance examination
reports found that the veteran did not require such service.
The examination report dated in August 1996 indicated that
aid and attendance was needed. The primary disability,
however, was caused by psychiatric problems, for which
service connection is not in effect. It was noted that the
veteran had problems with his medications. There is no
evidence in this examination report that the problems with
taking the medication stemmed from any of his service-
connected disabilities. Additionally, this examination
report indicated that the veteran was able to feed himself,
attend to his personal grooming needs, and had the ability to
ambulate approximately one block or 100 feet. The fact that
the veteran's need for aid and attendance was necessitated by
the veteran's nonservice-connected psychiatric disorder is
reinforced by the May 2000 letter from the private physician.
As of November 1999, the veteran was still able to live by
himself.
In conclusion, the medical evidence does not demonstrate that
the veteran's service-connected disabilities render him so
helpless as to be unable to care for himself or protect
himself from the dangers or hazards incident to his daily
environment, does not render him substantially confined to
his dwelling or immediate premises, or permanently
housebound. Thus, the Board finds that the preponderance of
the evidence is against the veteran's claim of entitlement to
special monthly compensation based on being housebound or in
need of regular aid and attendance. It follows that the
provisions of 38 U.S.C.A. § 5107(b) are not for application.
ORDER
Service connection for arthritis of the head is denied.
Service connection for arthritis of the left shoulder is
denied.
Service connection for arthritis of the legs is denied.
Service connection for arthritis of the right hip is denied.
Service connection for arthritis of the right hand is denied.
Service connection for flat feet is denied.
New and material evidence has not been received to reopen a
claim of entitlement to service connection for bilateral
hearing loss. To this extent, the appeal is denied.
New and material evidence has not been received to reopen a
claim of entitlement to service connection for a cervical
spine disability. To this extent, the appeal is denied.
New and material evidence has not been received to reopen a
claim of entitlement to service connection for a left hip
disability. To this extent, the appeal is denied.
New and material evidence has not been received to reopen a
claim of entitlement to service connection for a bladder
disability. To this extent, the appeal is denied.
A rating in excess of 10 percent for residuals of a
laceration of the extensor tendons of the left right and
little fingers is denied.
A compensable evaluation for residuals of a fracture of the
alveolar arch with fractures of teeth 24, 25 and 26 is
denied.
Entitlement to special monthly pension based on a need for
the regular aid and attendance of another person is denied.
V. L. JORDAN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.